Public Bill Committee

[Mr Charles Walker in the Chair]
Written evidence to be reported to the House
E 47 The Board of Deputies of British Jews
E 48 Million+
E 49 Million+—additional memorandum
E 50 Comprehensive Future
E 51 Unison
E 52 Oxfordshire Governors’ Association
E 53 Beth Worrall and Adrian Skilbeck

Charles Walker: Before we begin, I should like to inform the Committee that my fellow Chair was of the opinion that the principle of clause 2 and matters arising will have been adequately discussed during the course of the debate on the amendments, once we have finished with all the groups. I therefore intend to put the question on clause stand part forthwith, once we have dealt with all the amendments to the clause.

Clause 2

Amendment proposed (8 March): 10, in clause 2, page 3, line 32, at beginning insert ‘Subject to subsection (7),’.—(Kevin Brennan.)

Question again proposed, That the amendment be made.

Charles Walker: I remind the Committee that with this we are discussing the following: amendment 12, in clause 2, page 4, line 23, at end insert—
Amendment 16, in clause2,page4,line41,leave out from beginning to end of line 3 on page 5.
Amendment 15, in clause2,page5,line3,at end insert—
Amendment 11, in clause2,page6,line17,at end insert—
Amendment 17, in clause2,page6,line17,at end insert—

Nick Gibb: Welcome to your first chairing of the clause-by-clause scrutiny, Mr Walker. It is good to serve under your chairmanship, and it is good to be back.
On Tuesday, when we left off, I was talking about amendment 12, which seeks to introduce a requirement for training in using search powers, especially to cover the maintenance of a pupil’s dignity and privacy, as well as the additional considerations of searching a child with special educational needs.
As I said, I understand the concerns behind the amendment and the importance of maintaining dignity and privacy, as well as the additional factors that teachers need to take into account when searching a child with special educational needs. However, under existing provisions which are not being amended by the Bill, head teachers are required to authorise members of staff to undertake a search. The head teacher must, therefore, be satisfied that the member of staff is competent to carry out a search, taking account of any training received.
A wide variety of training organisations offer services to schools on a commercial basis, providing head teachers with the flexibility that they need to ensure that their staff have the most beneficial training. The arguments were well rehearsed when the power to search for weapons was first introduced under the Violent Crime Reduction Act 2006, and again when the power was extended to include alcohol, illegal drugs and stolen items under the Apprenticeships, Skills, Children and Learning Act 2009. For the reasons set out above, it was not deemed necessary for the legislation to impose on schools a requirement for training. I do not believe that it is necessary now, in relation to the existing search provisions or to the extensions to the search provisions being made in the Bill.
The hon. Member for Bolton West said that the existing provisions require a searcher to be a senior member of staff with training. That is not in the current provisions, for which the hon. Lady’s party was responsible, other than the requirement for the head teacher to have authorised the member of staff to carry out searches—a proviso that we are maintaining.
Of course, we firmly agree that behaviour management is important, and that all teachers should be trained to manage pupils’ behaviour. Giving teachers the authority and training to tackle poor behaviour effectively is vital. Currently, only two thirds of newly qualified primary teachers feel that they are well or very well trained to establish and maintain a good standard of behaviour in a classroom. That is why the White Paper “The Importance of Teaching” sets out our commitment to reform initial teacher training to focus on key teaching skills, such as managing behaviour.
Amendment 16 seeks to remove a provision that would, in certain limited circumstances, enable searches of a pupil’s possessions to be carried out without a witness. The limited circumstances are those in which the person carrying out the search reasonably believes that there is a risk of serious harm being caused to a person and, in the time available, it is not practicable for another member of staff to be present.
It is clear to me from the discussions during the evidence sessions and in Committee that some hon. Members and practitioners are concerned about such searches. I assure the Committee that the Government take those concerns and the need to safeguard pupils extremely seriously. We also take very seriously the need to ensure that teachers have the legal backing they need to act immediately in exceptional circumstances to prevent serious harm to themselves or pupils. By permitting searches of possessions without a witness in very limited circumstances, I believe we strike the right balance in the interests of safety.

Meg Munn: Some time has elapsed since Tuesday; has the Minister come up with a scenario in which this might be needed?

Nick Gibb: The hon. Lady will have to contain her excitement and anticipation: that moment is about to arrive. I believe that, in practice, it would be on very rare occasions that teachers would search a pupil’s possessions without a witness present, but in the interests of safety it is right that the law provides this flexibility.
On Tuesday the hon. Lady said that she could not imagine a situation where this provision might be necessary. A practical example of where it would be helpful in a secondary school is that of a lone science teacher who suspects that a pupil, known to have self-harmed in the past, has taken a bottle containing a chemical substance which he intends to ingest. The teacher feels unable to leave the room to summon another member of staff, for fear that the pupil will ingest the substance in her absence. In this instance, the law would allow the teacher to undertake an immediate search of the student, because the teacher reasonably believes that by taking the substance the pupil could cause himself serious harm.
I also suggest that any actual or suspected possession of a weapon is an emergency situation which teachers must be able to respond to immediately, rather than being required to wait for reinforcements.
It is not possible for us in the Committee room to predict every circumstance in which it might be necessary for a member of school staff to search a pupil without a witness, but it is right that if and when such circumstances arise the law enables them to take immediate action in the interests of all concerned.

Kevin Brennan: The Minister just cited an example that actually could be dealt with by existing powers. Will the Minister cite examples of the lobbying that he had on the particular necessity—as he puts it—to introduce this new power under these circumstances, and tell us from whom he received that lobbying?

Nick Gibb: Not all measures are driven by lobbying, but I will come back to the hon. Member with some details of which people and organisations wish to have this power, either later in the sitting or in writing. In a moment I will cite some organisations that support this provision. I will find out whether they lobbied for it in advance, but as Ministers we have to take decisions based on our view of whether the measures are necessary, in addition to what other people are saying.

Kevin Brennan: May I say welcome to our deliberations, Mr Walker? Am I reading the Minister correctly? Is this something that came out of his own head?
On a point of order, Mr Walker. Would it be possible to pull the blinds down? It is rather difficult to see the Minister’s face across the room with that backlight.

Nick Gibb: It was a deliberate decision of mine to put the blinds up. The hon. Gentleman was a Minister in the previous Administration, so he knows how policy development works. These are not issues that arise from one person’s mind, but rather from a process of deliberation and concerns raised in opposition. However, I will also cite to him the briefing from the Association of School and College Leaders submitted to the Committee. At paragraph 5 it says:
“ASCL strongly believes that this extension of search powers is necessary and proportionate. The current position on searches has led to confusion and in some cases this has seriously undermined discipline.”
It goes on:
“We also welcome changes allowing searches to be carried out by a member of the opposite gender or without witness in specified urgent situations.”
One reason that the witnesses in one of the sessions were unable to clearly identify circumstances was because they were from secondary schools. Although the example that I have given is from a secondary school, the most likely occasion when that would occur would be in a primary school. It may be necessary for an opposite-sex search to take place there in the interests of child safety, particularly bearing in mind the fact that a quarter of primary schools have no male teachers.

Meg Munn: I raise these issues out of a genuine concern about the signal that is being sent. We have discussed signals a lot. I do not want to go into too much detail in an intervention, but the issue of self-harm could have been dealt with with the assistance of other pupils, and I addressed the issue of weapons in a contribution the other day. The signal that this sends to some teachers—unfortunately there are those that do not have good intentions—is that it is okay for a male teacher to perform a bodily search on a female pupil on their own. That is an enormously worrying signal. I have discussed it with many people who work in the care and education sector, and they share my concern.

Nick Gibb: That would be the wrong signal to receive from the Bill, because the clause clearly states that
“the person carrying out the search”
must reasonably believe
“that there is a risk that serious harm will be caused to a person if the search is not carried out as a matter of urgency”.
That test must be passed first. A male teacher cannot search a member of the opposite sex on a whim. A second test must also be satisfied, which is that
“in the time available it is not reasonably practicable for the search to be carried out by a person of the same sex as the”
pupil
“or in the presence of another member of staff”.
Both those tests must be satisfied, and the searcher must be authorised by the head teacher in the first place. There are plenty of safety measures to ensure that the hon. Lady’s example will not apply in practice.

Pat Glass: I would like to give the Minister the benefit of my experience, and he will be sick to death of that by Easter. I have been in many classrooms over many years, and in the past five years I can honestly say that I have never been in a classroom, in a secondary or primary school, where the teacher is alone and there are no other adults. The measure is unnecessary.

Nick Gibb: I will never be sick of the hon. Lady’s advice. Her years of experience are valuable, and her presence here is a loss to the teaching profession. I visited many schools in my years in opposition and since becoming a Minister, and I have been in many classrooms where the only adult, until I entered, was the teacher. In secondary schools, it is far more common for there to be one teacher in the classroom. The example I gave is not, therefore, an impossible situation. The fact that she would never have needed such powers in her professional experience is not a reason for not putting this safety measure into the legislation, particularly as it has support.

Stella Creasy: Will the Minister set out a little more clearly the precise time frame in which he expects the powers to be operated? He mentioned a particular time slot when he would imagine that a teacher would need to use the powers, and he also mentioned that the teacher would have to be sanctioned by the head teacher. Will he explain the kind of times that he is discussing? Five minutes? Ten minutes? Fifteen minutes? Is there a window in which these emergency powers might be used by a teacher without getting another adult or witness to what was going on?

Nick Gibb: The teacher must have been previously authorised by the head teacher to carry out a search, and then the two conditions would apply, one of which is that there was not reasonable time to get a witness or another person to search.

Stella Creasy: Could the Minister set out what he means by reasonable time? What sort of time scale is he talking about?

Nick Gibb: I will not start to lay down words in Hansard that will detract from what is clear in the legislation, because it states that the condition is satisfied if
“in the time available it is not reasonably practicable for the search to be carried out by a person of the same sex as the”
pupil. That, to me, is very clear and I do not think that any defining of those words by me would make the provision clearer. If anything, it would make it less clear. We will leave the wording in the Bill to speak for itself.

Kevin Brennan: What the Minister just said has revealed to the Committee how undercooked his thinking is on the matter. He cited an example a moment ago of a science teacher who might have to use such powers under certain circumstances. A moment later, he said that only teachers previously authorised by the head teacher would be able to use the search powers. Clearly, that cannot work because, if it were an emergency, all teachers would have to be able to use the powers, not just those teachers previously authorised by the head teacher. I have a feeling that some in-flight refuelling might have arrived, so I shall give the Minister a chance to answer that point.

Nick Gibb: The teacher has to be authorised, as a matter of school policy. The head teacher will take into account contingent matters that might happen in the future. The issue of teachers being authorised by the head teacher was introduced by the previous Administration. We support it. Its purpose was to ensure that newly qualified teachers and teachers without experience were not given such authority. The legislation makes it clear that, for example, the head teacher cannot authorise a senior pupil to carry out searches. They are important safeguards in the general search powers.

Kevin Brennan: Unless I am wrong, the powers for teachers to deal with disruption and ill discipline related to an immediate issue in the classroom are available generally to all teachers. I see an official shaking his head, but under law teachers are protected if they have to act in an emergency situation that they come across—for example, if they have to restrain pupils when there is reasonable cause to do so. The Minister is citing an emergency situation that could occur in a classroom at any time for which he said the powers would be essential, but he says that he does not anticipate that all teachers would be given the powers to carry out the search under those circumstances. That is a serious flaw in the proposal.

Nick Gibb: The hon. Gentleman was making the point with respect to restraint. He is right about that, but it is not the ideal way of dealing with the example that I gave. Restraining the pupil and holding her is one way of tackling the problem, but it is better to remove the chemical substance from the pupil. To restrain her for five, 10 or 20 minutes until another adult can come is not the ideal method.

Tessa Munt: Any such incident will be an emergency situation. We have established that. Obviously, all schools will record in the incident book if such a situation arises. It must surely be the case that, when a search takes place of a pupil by a member of staff, it would be recorded in the incident book and that, in itself, would be a check. It would be evidence for Ofsted to look at, if there was a particular discipline problem within the school. The incident book is the place where it should be recorded and, in some way, that is protection for anything suggested by the hon. Member for Cardiff West such as the vagaries of people taking such action in inappropriate circumstances.

Charles Walker: Order. Interventions are getting very long. Can we shorten them a little?

Nick Gibb: I am grateful to my hon. Friend for her intervention. She made the point about the protection of teachers extremely well.

Richard Fuller: Does the Minister agree that although the Opposition’s probing examples are useful they miss the core point, which is that the Bill provides the discretion so that teachers can exercise their judgment in their classroom? It is tight, but broad enough to allow that discretion by teachers. That the previous Government were unwilling to allow professionals that discretion was one of the reasons why their model of government came to an abrupt end.

Nick Gibb: Yes, my hon. Friend is absolutely right. I am trying to understand the argument of the shadow Minister. Is he arguing that anyone should be able to search? We think that the safeguards that exist at present are good; head teachers need to have a clear policy of who should be able to search. Does he believe that any teacher in the school should be allowed to search?

Kevin Brennan: That is a good rhetorical point, but it is not what I am arguing. I am asking the Minister to clarify how the powers will work in practice. In the practical example that he gave of a pupil who might be about to ingest a poisonous substance, at the point of danger no search would be required. If the teacher thought that the pupil had such a substance about their person, they could ask the pupil to hand it over. If they refused to do so, the teacher could take appropriate action to bring another member of staff along to conduct a search. The moment of danger is at the point where a pupil tries to ingest such a substance, in which case the teacher would require not search powers but restraint powers.

Nick Gibb: At that point it might be too late, if it were a toxic substance. The substance might be in the child’s bag and it would seem reasonable for the teacher simply to search the bag, but if they did so they would be breaking the law. We want to clarify the position so that teachers feel safe in their ability to ensure that there is good behaviour, order and safety in our classrooms. We are simply trying to clarify the law so that teachers know precisely where they are in maintaining order in our classrooms.

Pat Glass: There has been a lot of discussion about teachers and professionals, but the legislation talks about
“powers of members of staff”.
Members of staff might be the caretaker, lunch time supervisors or any visitor who is employed at the school at the time. Is the Minister seriously suggesting that the caretaker should carry out a search?

Nick Gibb: No; it has to be authorised staff, and such issues were raised when these powers were first introduced. It has to be a member of staff who is authorised by the head teacher. This amends other legislation that contains the necessary safeguards, which also include the fact that the head teacher cannot authorise a senior pupil—or any pupil—to carry out a search. Such safeguards about precisely who can carry out a search already exist in legislation, and we intend to maintain them. The other point to make is that the search that can be carried out cannot be an intimate one. I will come to that in a minute, but there are clear rules about what parts of the body can be searched and what clothing can and cannot be searched.
I now turn to some of the points that were raised on Tuesday. The hon. Member for Cardiff West mentioned the particular problems that might be faced by pupils with autism, especially those who have difficulty understanding instructions or coping with social interaction. That question was raised by Ambitious about Autism—formerly TreeHouse—and Autism Alliance UK in their briefing on the Bill. This is really about training teachers to deal with pupils who have severe behavioural or communication difficulties, rather than about searching. Staff need to understand what factors influence such a child’s behaviour, recognise the warning signs and be able to manage difficult situations. Teachers have had the power to search for some years and I am not aware that there has been a particular problem with disabled students. I would expect to have seen some evidence by now if a specific problem existed in this area.
Many hon. Members, including the hon. Member for North West Durham, have spoken of scenarios where it would be inadvisable for teachers to carry out a search. I accept that these are permissive powers, which are for use when it is regarded as appropriate and vital to conduct a search. The hon. Lady has asked what this says about the Government’s view of children. It says that we want to protect children, and to ensure that school is a safe and happy place where children are free to study and to learn.
Turning to amendment 15, I do not believe that it is necessary or desirable to define in guidance the terms—“search,” “force,” “risk,” “serious harm,” “reasonable grounds for suspicion” and “good reason”—that are specified in the amendment. Teachers are professional, intelligent people who know exactly what those terms mean in the everyday sense, and they do not need to be told. Indeed, most of the terms that are listed have been part of the searching provision since 2007, when the power to search pupils without consent for knives and weapons was introduced under the Violent Crime Reduction Act 2006. At that time, legislation existed that gave a head teacher the power to keep order in their school and made it illegal to carry an offensive weapon in school. A head teacher, with reasonable suspicion, could search a desk or locker without a pupil’s consent, search a bag or jacket with consent, and ask the police to do a personal search. The police could, with reasonable suspicion, enter a school to search without a head teacher’s consent, undertake a personal search without a pupil’s consent, and undertake an unannounced search of more than one pupil in a school.
There was concern at the time that offending pupils might escape detection by refusing consent for a school staff search of a bag or jacket, or by disposing of a weapon while the school asked the police to attend. So the then Government said that they wanted to deter the small minority of young people who were tempted to carry a weapon in school by making it clear that the school had the authority to search them on reasonable suspicion. That provision also included the power to use force to conduct a search. So it seems that terms such as “search,” “reasonable suspicion” and “force” were well understood in those days.

Graham Stuart: With the shadow Minister rightly probing these issues, I remind the Minister that the Select Committee, at the end of an extensive inquiry, supported the proposals on search. In that recommendation we added a notice about the need for training.
I want to pick up the points made about clarifying how these powers should be used. Could the Minister say something about the training of teachers, so that, for the protection of both pupils and teachers, there is clarity? In some ways, if properly instituted, that would help answer the shadow Minister’s points, even if it does not make it into the Bill.

Nick Gibb: Training is very important. As I said, two thirds of newly qualified teachers are unhappy with the level of training that they received from the education faculty or the teacher training college in behaviour management generally. There is a case for doing more on that.
The head teacher will authorise staff—staff have to be authorised by the head teacher before they carry out a search—and the level of training that the teacher has had, or the competence of that teacher, will be factors taken into account by the head before giving authorisation.

Graham Stuart: The Minister makes a fair point about the need to improve the training of teachers, giving them the basic classroom skills. That is another point made in our report. I would like to push him a little further on the specific requirements that are being extended. I do not know what form it might take, but it would be useful in considering the Bill if we could have more clarity from the Government on how that training might be improved, at what stage it might be offered, whether it requires any additional funding, and so on.

Nick Gibb: On newly qualified teachers, we are reviewing the initial teacher training standards. That is ongoing work. The Government’s direction of travel is not to start to tell head teachers how to run their school on a day-to-day basis. It is up to the head teachers, who are professionals, to decide what training they wish to make available to their professional staff, whether that is how to teach long division or how to conduct a search in exceptional circumstances.
It would be wrong for me as a Minister to start to say that every teacher authorised by a head teacher should have had x hours of training by these different approved training providers in issues of search, and so on. That is not a direction of travel that my hon. Friend would want to see us follow, and I am sure we would be criticised by his Committee if we took such an approach to the development of education policy generally.

Graham Stuart: The Government are rightly making a distinction between not telling heads and teachers how they should carry out their duties and prescribing that they should carry out certain duties. It would not be outside the Government’s philosophy to suggest that those who are designated should have appropriate training, as decided by the head. I wish to make it clear that teachers exercising such powers might be expected to have had some form of training, both for their own safety and for the safety of their pupils.

Nick Gibb: I understand my hon. Friend’s point, and I accept that head teachers will need to be careful about whom they authorise in their school; they need to be sure that the teachers who are authorised are competent to carry out such searches. However, I believe that we have to trust our head teachers—they are professionals—to determine what that level of training should be. Indeed, some teachers may not need training if the head is satisfied that their experience over the years means that they are already competent to carry out such searches.
The proposal to extend the search powers to include alcohol, illegal drugs, stolen property and any items that pupils ought not to bring to school was recommended by Sir Alan Steer in his report to the then Secretary of State in July 2008. It did not seem necessary to recommend that guidance should be provided to teachers to explain what was meant by the terms used in the search provisions. I suggest that teachers are managing quite well without our defining those terms. We should not seek to micro-manage how teachers use the powers. Defining the terms in guidance is more likely to hamper teachers than to help them understand the powers.
Although we do not wish to define particular items in guidance, existing law and the amendments to clause 2 require teachers to have regard to guidance from the Secretary of State in determining whether there is a good reason to dispose of alcohol and illegal drugs or to examine or delete images on electronic devices. We believe that this approach will assist teachers when there is an element of discretion.
Before dealing with the last amendment, I turn to two points raised by the hon. Member for Foyle. He asked whether legal action could be taken if a school decided to have a no-search policy. It is a power, not a duty. The provisions themselves would not lead to a penalty if it was decided not to use them.

Mark Hendrick: The Minister paints a scenario in which some teachers might be trained and others not. If, for purposes of consistency, the head deemed that all teachers should be authorised, what would happen if a teacher who was authorised but not trained was seen to have misused the power? Would the head be culpable?

Nick Gibb: Teachers who misuse the power would be responsible for their actions. The hon. Gentleman draws me into a hypothetical scenario in which there might be legal implications. If a head teacher was generally seen not to be competent in exercising his powers, it would be a matter for the head teacher. No one could give a view on the legal implications of the scenario outlined by the hon. Gentleman, and I will not be drawn on it.

Mark Hendrick: I asked that question because if a head teacher does not authorise all the teachers, some will have the power and some will not. Depending on the allocation of teachers, some pupils could be more at risk than others.

Nick Gibb: The scenario painted by the hon. Gentleman is too detailed for this debate. The legal position is clear, and the purpose of the Bill is to make it even clearer. The head teacher must authorise those members of staff that he regards as being competent to carry out searches. Teachers that are not so authorised do not have the power given to the teaching profession under the Bill and previous legislation to conduct a search. That is clear, and that is all that we need to understand in determining our support for these measures.
The hon. Member for Foyle made two other points. He asked what was meant by searching a person. I shall clarify the position, but it is no different from that given in previous legislation. The searcher may require a pupil to remove only outer clothing, which is defined in section 550ZB of the Education Act 1996 as hats, shoes, boots, gloves or scarves and
“any item of clothing that is being worn otherwise than wholly next to the skin or immediately over a garment being worn as underwear.”
The hon. Gentleman also referred to the search powers as “stop and search.” They are not at all the same. Perhaps it has something to do with the area that he represents but it is not right to link the powers in that way. Teachers will know the pupil, and will be able to search only if they have a reasonable suspicion, and not on the off-chance that they might find something that the pupil should not have.
Amendment 17 seeks to ensure that the searching provisions will apply to academies. I can assure all hon. Members that sections 550ZA to 550ZD, which clause 2 seeks to amend, already apply to academies, including those established under the Academies Act 2010. It is the Government’s intention to apply the searching powers in the clause equally to all state-funded schools. As I have said previously, our policy on academies is part of a comprehensive approach to driving up standards. The Government are determined to raise academic standards and improve behaviour in all schools. It is therefore essential that staff in academies have the same powers to search pupils as those in maintained schools. The existing law provides for that, and the clause will not alter that, so the amendment is unnecessary.
I thank all hon. Members for their amendments, which seek to improve the drafting of the provisions. Good behaviour is about leadership and ethos, but the power to search without consent is an important power, backed by head teacher unions. The powers will include a number of important safeguards and are compatible with human rights legislation. I therefore urge the hon. Member for Cardiff West to withdraw his amendment.

Kevin Brennan: I thank the Minister for his detailed response and for his courteous and detailed ways when dealing with interventions during our discussions. However, I think the debate raised more questions than it answered. I have a sense—perhaps I am not expressing it articulately —that there is something undercooked about the provisions and that they will not emerge from the other end of the proceedings, once the Bill has been through the House and the other place, in exactly the same form as we see them now. However, I may be wrong, and perhaps at the end of the process I will be admitting that.
I remind the Committee that amendment 10, the lead amendment of the group, would ensure that the powers were necessary and that there was an agreed statement between the Minister and the inspectorate about the necessity of introducing them and reporting to Parliament. It helped to form the basis of our discussions on the clause, about whether such powers are necessary and practical. I have a concern about the Minister’s response. He rightly, trying to be helpful to the Committee, described a scenario where a teacher might have to conduct a search in an emergency situation where a pupil was in danger of causing harm to themselves—as was in his example—and others. It would therefore be necessary for a search to be undertaken without a witness by a member of staff, who could be of the opposite sex to the pupil involved. The problem is that the power seems to be intended to be used in an emergency; I think we can agree on that. It is supposed to be a practical tool that a teacher has at their disposal when faced with a crisis in their classroom. That is, I think, the Minister’s genuine intention underlying the proposal.
However, the power will not be available to all teachers during a crisis in their classroom. In order to exercise that power, they would have to have had prior authorisation from their head teacher as someone who was suitable, had appropriate training, was trusted by the head teacher, and was suitably experienced, or was suitable according to whatever the head teacher judged at a local level, to conduct a search. The power intends to allow teachers to deal with an emergency in their classroom, but it will not be available for them to use. The Minister gave an interesting example of a pupil in a science class, whom the teacher might reasonably suspect has got hold of a toxic substance and could possibly cause harm to themselves by ingesting that substance. I completely agree with the Minister that that scenario could occur. Let us deal with it.
If the science teacher had not been given prior authorisation, they could not exercise the power that the Minister thinks is so essential that he is placing it in the Bill. That is the first point. The Minister may say that any sensible head teacher would ensure that the science teachers, because they deal with toxic substances, were the ones who were authorised to carry out the search. That may be correct, although it might not happen in all circumstances.
However, it is equally likely that a pupil would smuggle out a substance from the science lesson and take it into a classroom with a teacher who is less experienced and perhaps does not control their class as well, and whom the head teacher therefore thinks needs more training before they can be authorised to conduct a search. That teacher might have a reasonable suspicion that exactly the same circumstances were about to occur, but the power that the Minister thinks it is essential for teachers to have would not be available to that teacher under the clause as drafted.

Graham Stuart: As ever, the hon. Gentleman is making a powerful speech, but as the Minister asked him—I, too, would like clarity on this—do the Opposition believe, then, that all teachers should automatically have this power? Surely it has been made clear that it is up to the head teacher. They may provide that all members of their teaching staff have the power, but if they follow the hon. Gentleman’s logic, there may be circumstances in which they choose not to do that. It is down to the head teacher within the law. What does the hon. Gentleman want to do? What does the Labour party want to do?

Kevin Brennan: We are probing the Government’s policy, not our policy, but let me say in an attempt to be helpful, as ever, to the Chair of the Select Committee—he knows that I have great respect for the seriousness with which he undertakes his duties in that regard—that the point I am making is that it is for the Minister to explain to the Committee whether he envisages that all teachers should be trained and authorised to use the power. That would make it a power that could be used in the scenario that the Minister himself suggested—an emergency classroom situation. I think that is what he envisaged. That is one possibility. I am not suggesting that it should happen. I am simply trying to understand the inner workings of the Minister’s mind on this issue.
The second possibility is the other matter that we are exploring. It may turn out, once the issue has been debated in full, that perhaps this is not a practically usable power and that the existing powers, which teachers in practice would use to deal with the scenario that the Minister outlined, cover the situation already. I know that the Chair of the Select Committee would not want us to put in any Bill a clause that was otiose.

Graham Stuart: The shadow Minister is showing his normal fluency and the skills that he doubtless honed at the Oxford union. I would not seek to out-debate him—I do not think I could—but he has used those skills to avoid answering the perfectly reasonable question of what, on the matter of search powers, Her Majesty’s Opposition think should be the situation. Let me put this to him. We will have hours of debate in all sorts of Committees like this if he does not understand philosophically that the Minister does not believe in telling head teachers precisely what to do and therefore will refuse to say precisely what every head must do. He thinks, as I do, that we should leave the decision to the discretion of heads and that it would be wrong of Ministers to be explicit in the Bill, because then, like Pavlov’s dog, teachers out there might think that like the last Government, the present Government intend to prescribe everything that they do and exactly how they should do it.

Kevin Brennan: As the hon. Gentleman has studied my CV so carefully, he will also know that I studied philosophy, so I do have an understanding of this. Actually, my debating skills were learned in a working-class household in south Wales, not in the Oxford union—they were just noticed there. [Interruption.] The hon. Gentleman says from a sedentary position that I am no Nye Bevan. That is one proposition of his to which I fully assent.
To return to the issue that we are debating, I am seriously not trying to make a petty debating point. I am trying seriously to understand whether the clause stands up to the stress testing that we are here to submit it to. That is our job and it is what we are doing. We are putting it under stress to see whether it cracks, and so far some fissures are emerging.

Meg Munn: The point that I and some of my hon. Friends were making was that this is not about whether head teachers can make good decisions, but about whether we are enacting legislation that will make bad things, rather than positive things, more likely. As I said clearly in my speech, I am not against searching, but I am concerned about the specific circumstances. I think they will put pupils, teachers and other staff members in difficult situations, rather than allowing the use of the wide range of tactics and practices that we heard about in the evidence sessions.

Kevin Brennan: Yes, I agree with what my hon. Friend said. Searches are necessary from time to time, in law, and as the Minister correctly stated, significant changes have been made in recent years to clarify in law the circumstances in which such searches should happen. The previous Government deliberately put a provision in place that required a search to be done by an authorised member of staff—and that is the point that we are now debating. The provisions were deliberately made in a way that ensured a witness was present to protect all, which means not only pupils but staff, who are equally important.
In my teaching career, I was in such circumstances in a practical sense. I remember an occasion when a senior member of staff was having a discussion with a young girl who displayed behaviour that was very unsuitable for her age. She was on her own, having a discussion with Mr Walker in the head of year’s room, and fortunately, for his sake, I witnessed it. He was on his own with that young girl, and she acted in a way that could have put him in a very compromising situation. Fortunately, I was passing and witnessed what occurred, and I was able to ensure that we could report it immediately to the head teacher and make a record of it, in case that student made an accusation against a very senior and experienced teacher.
This matter is serious, and I know that the Minister takes it seriously too, which is why I am concerned that we have not got to the bottom of the clause’s intention yet.

Mark Durkan: The shadow Minister gives an example from his experience as a teacher, and one of his key points was that he and the other teacher concerned were able to notify the head, and a record was taken. If the powers are going to be exercised so exceptionally, and if they are going to be exercised with the head’s approval, does it need to be written in the Bill or elsewhere—in the school rules, or whatever—that when they are exercised, the teacher should report the circumstances to the head, who should then make a decision as to whether a record is kept, because subsequent controversies could emerge?

Kevin Brennan: Yes, indeed, it does. Where it needs to be made clear could be a matter for debate—it may not be something for the Bill necessarily. The Minister would also assent that it would be good practice to make that clear and bad practice not to. For the protection of all concerned, keeping a written record is extremely important, even if that is called bureaucracy—unnecessary bureaucracy is bad, but not all bureaucracy is. Writing such things down can be important, because it can save a lot of extra work later, which includes unnecessary court cases and accusations going further than they should.
Amendment 10 and amendment 11, which asks for a report to be placed before Parliament to say that such powers are necessary, are designed to probe the Minister’s thinking, and I am interested in his response. At the moment, I am unsure whether to press the amendments to a vote—at the appropriate time. The intention was to probe, because we need to put our concerns on record at some point.
Amendment 12 relates to training and the dignity of the child. In particular, it refers to special educational needs. The Minister is a man of his word. On Tuesday, he said that the Green Paper on SEN was imminent and, for once, it was indeed imminent—it arrived the very next day. I congratulate the Minister on his prescience and use of language. It raises questions, however. In his response, will he say whether he has any initial thoughts on whether, in the clause and the amendments, the proposals in the Government’s Green Paper on SEN will have any impact on the need for the training of teachers dealing with search powers in relation to SEN?
Those commenting on the Government’s Green Paper have suggested that there could be a big reduction in the number of children classed as having SEN. In fact, the Government have stated that they think too many children are classed as having SEN. The figure that was bandied about was that some 20% of pupils had an SEN of some kind or another, which was the figure in the Warnock report many years ago. Sometimes that is confused in people’s minds with those who have a statement of SEN, which is a much smaller number—some 2%. There is sometimes a bit of blurring when this issue is discussed.
Can the Minister clarify what impact the Green Paper will have on our amendment calling for more training for teachers dealing with searches in relation to pupils with SEN? Does he envisage far fewer children being classed as having SEN? We discussed this broadly in the debate on Tuesday, but will that have an impact on how much training there needs to be and how many pupils will be classed with SEN? Will it be the case that some pupils currently classed as having SEN will not be classed as such later, meaning that no search training will be required for teachers?
On amendment 15, the Minister said that the terms are adequately defined in law already. It is a probing amendment, and I am grateful for his assurance that he believes that they are already adequately defined in law. He referred to the comments made by the hon. Member for Foyle on how this was nothing to do with stop and search, so it is a completely separate sort of provision. I will not press the amendment. Broadly speaking, it is my view that it is perfectly reasonable for teachers to have the right to confiscate contraband within school rules. Search, in the proper circumstances, as currently defined, can be justified.
Amendment 16, which forms part of this long group of amendments, asks for a reinstatement of the requirement to have a witness in relation to searches. Currently, the case that the Minister has tried to make for the necessity for the power to search without a witness is unproved. During the course of our debate, the case has been left unproved. Rather than us debate it ad nauseum, until the case is proved one way or another, it would be sensible for us to at least register our concern about this by pressing for a division on amendment 16, so that we can put on record our concerns on the lack of a requirement for a witness to be present and on whether these powers are usable or useful. We might have to return to this area of the Bill on Report. In the meantime, we might get more clarity from the Government about how they think the powers will work.
On amendment 17, the Minister confirmed that the powers “should apply” equally to academies. When he comes back, finally, would he consider inserting “will” instead of “should,” because the two words have different meanings?

James Duddridge: On a point of order, Mr Walker. The shadow Minister has for the fifth time referred to when the Minister comes back. May I seek clarification? My understanding is that the Minister has made his concluding remarks. I know two days have passed, and we are not fresh to the process at the beginning of the Committee stage, but perhaps you could refresh my mind.

Charles Walker: I thank Mr Duddridge for the point of order. The Minister is perfectly free to do what he likes. He can come back or not, as he chooses, but that is a choice for the Minister at this stage.

Kevin Brennan: Shall I continue, Mr Walker?

Charles Walker: I would be delighted.

Kevin Brennan: As ever, Mr Walker, your ruling from the Chair is absolutely correct. I repeat, the Opposition’s intention in Committee is to get through the Bill in the time allocated, but also to scrutinise thoroughly those parts of the Bill that we believe need it. It is entirely at the Minister’s liberty whether he wishes to respond to my points, but in my experience the Minister has always wanted to respond to the Opposition’s points. He does so courteously and is always informative and helpful—

Graham Stuart: And succinct.

Kevin Brennan: As well as succinct, which of course is a virtue in government—but not always in opposition.

Nick Gibb: I welcome the hon. Gentleman’s support for the provisions to allow searching for contraband, as he put it, and for items banned under the school rules. I commend the Green Paper to him, which I think he will find an excellent read. It sets out thoroughly and well our policy on special educational needs, which has widespread support in the country.

Kevin Brennan: Although I said that being succinct was a virtue—

Graham Stuart: Only in government.

Kevin Brennan: Only in government. However, I asked the Minister for a little more, just to let us know about any influence over the powers of search.

Pat Glass: I was interested in the Minister’s comments about the Green Paper, and I agree with some things in the thrust of it, but I must say that it is the greenest Green Paper I have ever seen. It sets out the problems well, but unless I have read it incorrectly, it does not set out clearly the Government’s policy on what they intend to do about those problems.

Graham Stuart: On a point of order, Mr Walker. Is there any process by which this debate will ever come to an end?

Charles Walker: I am new to this, but the debate will come to an end when I decide it comes to an end. Too many Members are trying to chair the debate, from a sedentary position.

Kevin Brennan: Thank you, Mr Walker. As ever, I completely respect the Chair’s rulings.
I note the intervention of my hon. Friend the Member for North West Durham. I am sure there will be much further discussion of the Green Paper and its implications, but that is not for us now.
I wanted to check that one point with the Minister. I asked him whether the provision will apply to academies, and he said that it “should apply”—I wrote that down when he said it. Can he say to the Committee that it “will” apply equally, or can he only use “should”?

Nick Gibb: If I may put the shadow Minister out of his misery, the school rules provision will apply to academies through regulations, a draft of which we have circulated.

Kevin Brennan: I am grateful to the Minister and, with your permission, Mr Walker, we may conclude this part of the debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Kevin Brennan: I beg to move amendment 13, in clause2,page4,line13,after ‘determined’, insert
‘, approved by the Secretary of State’.
To put the Committee out of its misery, let me say that this is a probing amendment. We want to probe the Government on which articles may be searched for in education settings that do not have school rules as defined in the Education and Inspections Act 2006.
Under previous legislation, school staff have powers to search for prohibited items and to seize them from pupils. As we have heard, those items include weapons, alcohol, drugs and stolen goods. Knives, other offensive weapons, drugs and so on are already covered in section 550ZA of the Education Act 1996, which deals with the power of members of staff to search pupils for prohibited items in England. The clause extends that power so that staff can search for and seize any item banned by the school rules.
Section 89 of the 2006 Act includes a definition of school rules, but there is no statutory definition of school rules in independent schools. Is that correct? If there is no definition of school rules in independent schools, does that also apply to academies and free schools? I think it does, but I should be grateful if the Minister would say whether that is correct.
As it stands, the clause could extend very broad search powers to teachers in independent schools, and that includes academies and free schools, if the assumption about their forming part of the proposals is correct. The Bill proposes that school rules in independent schools should be defined in regulations, but those regulations have yet to be published, and we do not have them before us. If I am wrong about that, I apologise, and I would certainly like to see them.

Nick Gibb: We did circulate the regulations to the Committee. I think we sent them round on Monday; it may have been later than 4.34 pm, but it was at some point on Monday. They are on the Education Bill, clause 2(2)(c)(4B)(b), illustrative content of regulations. The regulations set out the processes that academies must follow to define and publicise items banned by the school rules.

Kevin Brennan: I am grateful that they have been sent around. If our vast Opposition team of radar-scanning individuals has missed that document, I apologise to the Committee. It is helpful that the regulations have been sent out, although obviously it would have been helpful if they had been sent out earlier.
If you will indulge me for a second, Mr Walker, this raises a point about the process by which such information is circulated. I understand why it is lodged officially with the Committee and then sent out, but it would be helpful—I do not know whether this is possible—if the Minister could send it directly to us at the same time as the Committee, without doing any discourtesy to the Committee. In that way, hon. Members would have the opportunity to see things as soon as they became available. A forensic examination of the computer origin of the famous 4.34 document showed which official—I am not allowed to refer to him, and he may or may not be nearby—had had it on their computer the previous Thursday, even though we did not receive it until later. However, the point is that it would be useful if we could get information as soon as it was sent to the Committee, because the Committee Clerks have lots of work to do.

Nick Gibb: I agree with the shadow Minister. It is important that the Opposition have these documents in a timely way, and I want to ensure that that happens. We will send them to all members of the Committee at the same time as we send them to the Committee Chair.

Kevin Brennan: That is extremely helpful. I am grateful to the Minister for agreeing to do that. In his remarks, he may be able to refer to those regulations, which we have not had a chance to study properly yet.
The amendment, which is probing, would mean that rules in independent schools, including academies and free schools, would have to be approved by the Secretary of State before teachers gained the power to search and seize any item found by virtue of their being mentioned in school rules. I want to hear the Minister’s explanation of that.

Nick Gibb: Clause 2 permits only searches for items banned by the school rules where the items have been identified in the rules as an item that may be searched for. The power to search for items banned by the school rules is linked in the clause to section 89 of the Education and Inspections Act 2006, which refers to the determination by the head teacher of the behaviour policy. In other words, for the power to apply, the school rules must have been made under the provisions of section 89, with all the consultations and publication required by that provision.
However, as the hon. Member for Cardiff West rightly pointed out, that section applies only to maintained schools and non-maintained special schools. In order that other schools, such as academies, can also search for items banned by their rules, we have included provisions in the Bill to enable regulations to be made that will mirror the provisions in sections 88 and 89 of the 2006 Act. Illustrative regulations for this purpose have been circulated to the Committee. The Government consider that it is necessary to require schools to list the items for which a search can be conducted in rules made in accordance with the requirements of section 89, or regulations made under new section 550ZA(4B) of the Education Act 1996, to ensure that they are sufficiently accessible and their application foreseeable to all affected by them.
The amendment would mean that school rules made under the regulations, rather than under section 89, must be approved by the Secretary of State for each individual academy before academy staff can carry out searches for the items listed in them. I appreciate that the intention of the amendment is that the items that schools are permitted to search for should be subject to appropriate scrutiny. The legislation will do that through regulation for academies, mirroring the provisions for maintained schools.
While we have made it clear that we want to give academies freedom to innovate, we also think it is important that they follow certain basic standards that apply to all schools. That is particularly important when it comes to the rights of children and to communicating their expectations of behaviour to pupils and their parents. Therefore, the legislation creates a number of important safeguards.
First, maintained schools and academies will be required to list in their rules the items liable for a search under the powers. That is an important safeguard, which ensures that pupils and parents know which items are unacceptable in school and so may be searched for. Secondly, governing bodies are legally required to consult the head teacher, school staff, parents and pupils on their written statement of behaviour principles, and the head teacher is required to take account of this statement when developing the school's behaviour policy.
As the framework for developing and consulting on the school behaviour policy is already established in the Bill, it is unnecessary to introduce an additional requirement for the Secretary of State to approve the items that may be searched for in either academies or maintained schools. I therefore urge the hon. Gentleman to withdraw his amendment.

Kevin Brennan: I am grateful to the Minister for that explanation. Obviously, we will want to study the draft regulations that he has already sent round. It was helpful of the Minister to put the Government’s position on the record, confirming that they will expect academies to be in a similar position to maintained schools. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 16, in clause2,page4,line41,leave out from beginning to end of line 3 on page 5.—(Kevin Brennan.)

The Committee divided: Ayes 8, Noes 10.

Question accordingly negatived.

Kevin Brennan: I beg to move amendment 14, in clause2,page5,line32,at end insert

Charles Walker: With this it will be convenient to take amendment 22, in clause3,page7,line32,at end insert

Kevin Brennan: If nothing else, our proceedings are performing a useful training exercise for us all of whatever level of experience and whatever role we are serving in Committee. Some members of the Committee will wonder why we divided on amendment 16 when we did instead of during the previous debate, but that was because amendment 13 had not yet been debated and it relates to an earlier provision in the Bill. I know that hon. Members will welcome that kernel of parliamentary knowledge to add to their procedural toolkit, to use the term that was heavily criticised in the press when a Minister used it.
The amendment is about training. It would ensure that staff using powers to search data and files have appropriate training and seniority. It is grouped with amendment 22, which comes with another little arcane piece of parliamentary procedure because it refers to clause 3. We will all be intrigued to see how we deal with that. We tabled it to probe safeguards for staff in the deletion of material that might cause the adult to commit a criminal offence. The clause allows teachers to search and seize mobile phones and other electronic devices from students, and to view and erase the material held on them.
Understandably, we want to examine carefully the implications of such a proposal and a fairly wide-ranging number of organisations have expressed concern about it. The power will be given to teachers, and I wish to refer to what was said about the provision by their representative body, the National Union of Teachers, of which I was once a member. I told the Committee on Tuesday that I had never been a member of the NASUWT, but I was a member of the National Union of Teachers, although I no longer am. It states:
“This provision places the burden of proving that erasure of data from an electronic device was lawful on the person who erases or disposes of that data. This is a serious disincentive to use of the power. It means that a teacher who has exercised the power could be the subject of legal proceedings in which it is up to him or her to prove that the power has been lawfully exercised”.
The amendment therefore seeks to protect staff, who might undertake to use the new powers that the Bill affords them, from criminal prosecution, and thereby protect schools and teachers from expensive litigation.
In addition, it is not clear what exactly the full implications of this clause would be—the Bill does not absolutely make that clear. What would happen, for example, if a teacher confiscated a mobile phone or electronic device on suspicion that it contained unsuitable images of some kind, and in the process of searching through the device to find those unsuitable images, came across illegal images which might be very serious indeed, such as images of child pornography, that could normally only be viewed legally by specific, nominated police officers who have specific authority and training to do so? I may be wrong about this, but we need to know the answer. My understanding is that there are certain categories of image that it is not only illegal to possess but illegal to view unless you are a specifically nominated and trained member of the police force. In a case such as this, where the images are of such a serious criminal nature as to be covered by, I think, the 2003 Act, is it possible that a member of staff would be committing a criminal offence simply by viewing the images?

Dan Rogerson: The hon. Gentleman pursues an important line of thought and I understand his reasons for raising these concerns. However, in my recollection, there have been a number of cases where prosecutions have been brought against someone after evidence has been brought to light when a computer has been repaired and a technician has come across the image. I am not aware of any case in which one of those technicians has later been prosecuted for having viewed an image.

Kevin Brennan: The hon. Gentleman may well be right. This is a very tricky area of the law, because one has to make a judgment about the intent of persons. I have certainly come across cases in my own constituency casework—these are the extremely difficult cases we all have to deal with as MPs sometimes—of people who say that the images that they accessed were accessed during the course of some other activity, but have nevertheless been subject to quite strong pressure to at least accept a police caution and be placed on the sex offenders register for a period of time. It is not for any of us here to act as judge and jury on such cases; I am simply asking what thought the Government have given to what would happen under such circumstances, which may well occur under this clause.

Meg Munn: It is entirely right that my hon. Friend probes the legal part of this, but, as I believe he said earlier, it is also about training, because these issues could well be significant in child-protection terms and staff will need to be properly trained to recognise the right thing to do, not just to protect themselves, but potentially in relation to children who may be victims.

Kevin Brennan: My hon. Friend is, as ever, very perceptive on this and she may want to develop her remarks further in the course of the debate. I will come to some of these issues during the course of my remarks on these two amendments. I would be very interested to hear the thinking of the Minister and the Government around that very serious kind of case. The Minister for Further Education, Skills and Lifelong Learning may be able to satisfy us that that is a concern we do not need to worry about. I look forward to that—he is a man of many quotations. I have never heard him say, “Brevity is the soul of wit”, but we look forward to his brief reply, listening to the admonitions of his own Whip.
The other point is about the rights of students. I am clear that we absolutely must be extremely careful about protecting teachers from wrongful allegations. The Bill does some helpful things in that regard, which we shall be able to welcome later on. However, we also need to consider students and children and, in some cases in these provisions, adults; let us not forget that the provisions go beyond the age of 16 and into further education, where in this age of learning through life students can be any age, from 16—or these days sometimes as young as 14—to 18 or beyond. There are thus significant issues about the rights of adults, as well as the rights of children. What about the privacy rights of students? The provisions will affect students—not just children. [Interruption.] I apologise once again to the Chair of the Education Committee and to Hansard. Even in a school—I have certainly come across this—there might be married students, or students perfectly legally in a civil partnership. It is perfectly possible. Does the clause allow teachers or lecturers to trawl through students’ mobile devices, on reasonable suspicion, when those students may be adults, not children?

John Hayes: For the sake of brevity, to some degree, it might be as well to clarify this point now. I am not quite following the hon. Gentleman’s logic, in the sense that that privacy would apply to a bag that might be searched, in the way my hon. Friend the Member for Bognor Regis and Littlehampton described earlier, or a desk or a person. Why does the hon. Gentleman attribute to an electronic device a particular kind of privacy that might not apply in those other instances?

Kevin Brennan: I think that we know the huge amount of data that can be contained in a small electronic device, whether that is written data, images or video and film. I have my entire record collection here in my pocket, and I am happy for the Minister to trawl through it.

John Hayes: “Just One Look” would be good enough for me. The hon. Gentleman will understand the resonance of that.
The point is that we are debating not scale, but kind. It is true that as a matter of scale one can store a great deal on electronic devices, but the point he was making was about not scale, but kind. The kind of material that is stored on a phone or electronic device is not different in qualitative terms, although it might be quantitatively different, from what might be stored as hard copy.

Kevin Brennan: That is a good debating point, but it is not true. There is a significant difference in the type of information. I do not think I have “Just One Look”, by the way. I will check later. There is a lot on it.
The quality of the information could be significantly different. There could be a huge amount of sensitive and personal data on an electronic device. I would be happy for the Minister to scroll through my iPod, which I have in my left pocket. I might not be so happy—I will not say why—for him to scroll through my iPhone, which I have in my right pocket. It contains personal pictures of my family, some information to do with my bank accounts and personal information, which I would not want him to look through even though he is a trusted member of staff in two Government Departments. I would not give him the pass code to get into my phone if he found it. I would refuse flatly to allow him to do it. That is not because there is anything in it that is illegal. It is because there is personal and private information in it, which I would not be happy for someone to take from me, unless a very high standard was required, as there is currently in law, for someone to trawl through the device, such as a police officer.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One o’clock.